United States v. Charnpal Ghuman ( 2020 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    Nos. 19-1734 & 19-1745
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    CHARNPAL GHUMAN and AGA KHAN,
    Defendants-Appellants.
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 1:13-cr-00816 — John J. Tharp, Jr., Judge.
    ARGUED APRIL 7, 2020 — DECIDED JULY 16, 2020
    Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
    ROVNER, Circuit Judge. Charnpal “Paul” Ghuman and Aga
    Khan participated in a multi-million dollar bank fraud scheme
    in which they helped to create fraudulent loan applications in
    order to convince a bank to issue mortgages to unqualified
    individuals who were purchasing gasoline stations from them.
    Both men pleaded guilty to one count of bank fraud, see 18
    2                                       Nos. 19-1734 & 19-
    1745 U.S.C. § 1344
    ; Ghuman also pleaded guilty to one count of
    filing a false tax return, see 
    26 U.S.C. § 7206
    . Ghuman challenges
    the district court’s decision to deny him credit for acceptance
    of responsibility, see U.S.S.G. § 3E1.1, and the imposition of a
    three-year term of supervised release on his false tax return
    conviction. Khan challenges the restitution he was ordered to
    pay. We affirm with one correction to Ghuman’s sentence.
    I.
    Defendants Ghuman and Khan were among several
    individuals who perpetrated a scheme to defraud American
    Enterprise Bank (“AEB”) beginning in 2006 and lasting until
    2009. The two men had become friends in high school and
    eventually went into business together. Initially, they were
    partners in a chain of cell phone stores, and then they expanded
    their investments to include gas stations. Khan devoted the
    majority of his time to managing the cell phone stores, whereas
    Ghuman primarily managed the gas stations. Beginning in
    2006, they began to “flip” gas stations: acquiring the stations
    and then re-selling them at a profit. As the scheme developed,
    Ghuman would line up a buyer for a given station before he
    and Khan had even purchased that station.
    The charged scheme involved the resale of some 44 gas
    stations in the Midwest to buyers whom Ghuman and Khan
    had recruited. The buyers were in a number of instances
    purchasing multiple stations (at Ghuman’s urging), and yet
    they lacked the financial wherewithal to qualify for the loans
    necessary to make these purchases. Knowing that their buyers
    would not be approved for loans based on the facts, Ghuman
    and Khan relied on the cooperation of their co-defendant, AEB
    Nos. 19-1734 & 19-1745                                                  3
    loan officer Akash Brahmbhatt (to whom they gave cash,
    automobiles, and airline tickets as inducement), to arrange for
    the loans based on fraudulent documentation as to the buyers’
    income, assets, and contributions of equity to the transactions.
    Brahmbhatt, for example, after obtaining a buyer’s personal
    identifying information, would typically prepare a personal
    financial statement, management resume, and personal history
    that contained false information about the buyer’s financial
    assets, citizenship status, education, and work history—all
    designed to make the buyer look more qualified for loans than
    he or she was in fact. Similarly, Ghuman in some instances
    prepared falsified bank statements inflating the buyer’s cash
    holdings to submit in support of the loan applications. And
    when Ghuman was selling a number of Kum & Go gas stations,
    he fashioned a set of financial statements for those stations out
    of whole cloth after Brahmbhatt told him the limited available
    data on those stations was insufficient. In one or more in-
    stances, Ghuman also created fraudulent subordination
    agreements, signed by non-existent gas station landlords,
    purporting to give the bank priority in payments from the
    stations. Finally, co-defendant Shital Mehta, an accountant,
    prepared fictitious (never-filed) tax returns inflating the buyers’
    income (typically to a range of $50,000 to $60,000) that were
    likewise submitted to the bank.1
    The loans were guaranteed by the Small Business Adminis-
    tration, and a material condition of the loans was that the
    1
    Mehta incorporated some of the business entities that took title to the
    purchased stations and also performed payroll and tax services for certain
    of the buyers.
    4                                       Nos. 19-1734 & 19-1745
    buyers provide a certain amount of equity through down
    payments. The submitted loan paperwork made it appear
    (falsely) that the buyers had the funds to make these contribu-
    tions. In some instances, Ghuman scanned, electronically
    altered, and then re-printed checks (occasionally checks that the
    buyers had previously tendered for other purposes) to make it
    look as though the buyers were supplying the funds, when in
    fact no such equity was ever provided. In other instances, Khan
    and Ghuman provided the equity payments themselves, and
    recouped the funds when the sales closed. In these instances,
    gift letters were prepared indicating (falsely) that the buyers
    had received the equity funds as gifts from relatives.
    Where buyers were acquiring multiple gas stations, they
    were encouraged to find family members and friends who
    would co-sign and guarantee the loans. (In some instances,
    Ghuman recruited his own relatives for this role.) These
    individuals were then designated as the nominal buyers of the
    stations, although they had no genuine intent to own, possess,
    or run the stations. They were, for all intents and purposes,
    sham buyers. False documentation was then prepared to make
    it appear as though these individuals had the requisite where-
    withal to qualify for the loans.
    When the loans were issued and the gas stations were sold
    to the buyers, Khan and Ghuman split the proceeds of each
    sale, which of course were funded by the loans from AEB. AEB
    ultimately issued more than $38 million in loans as part of the
    scheme.
    Not surprisingly, given the limited financial resources and
    experience of the buyers, the loans went into arrears before
    Nos. 19-1734 & 19-1745                                         5
    long. The buyers were typically able to make loan payments for
    a year or two (in some instances with help from Ghuman)
    before defaulting.
    The scheme came to an end in late 2008-early 2009 when the
    SBA began auditing the AEB loans and the FBI began looking
    into suspected bank fraud. AEB ultimately incurred a loss in
    excess of $14 million from the scheme.
    Shortly after they learned from Brahmbhatt in April 2009
    that an AEB employee had been interviewed by the FBI, Khan
    and Ghuman fled to India. Neither of them returned to the U.S.
    until 2011. Although both men deny having any substantial
    assets in India, it appears possible that they might. There is
    evidence that they discussed moving $2 million in funds to
    India in advance of their flight. And personal financial state-
    ments that Ghuman prepared in 2008 and 2009 indicated that
    he had more than $2 million in bank accounts there and that he
    owned two properties valued at more than $7.5 million. R. 297-
    12. Likewise, Khan informed the government in his proffer that
    he and Ghuman had invested in properties in India, including
    an apartment building.
    Khan and Ghuman were indicted in 2013. Both were
    charged with multiple counts of bank fraud, in violation of 
    18 U.S.C. § 1344
    , and bank bribery, in violation of 
    18 U.S.C. § 215
    ;
    Ghuman was also charged with filing a false tax return, in
    violation of 
    26 U.S.C. § 7206
    . Khan cooperated with the
    government and ultimately pleaded guilty to one count of bank
    fraud (Count 18) in connection with a $331,000 loan by AEB to
    finance the 2008 purchase of a gas station in New Boston,
    Illinois. Ghuman pleaded guilty to another count of bank fraud
    6                                              Nos. 19-1734 & 19-1745
    (Count 1) in connection with a $744,000 loan by AEB to finance
    the 2007 purchase of a gas station in McComb, Illinois.
    Ghuman also pleaded guilty to one count of filing a false tax
    return (Count 23) which substantially understated his income
    for the calendar year 2006.
    At sentencing, the district court denied Ghuman credit for
    acceptance of responsibility pursuant to Guidelines section
    3E1.1, reasoning that Ghuman had both failed to admit his
    central role in the bank fraud scheme and falsely denied
    conduct manifesting that role. The court ordered Ghuman to
    serve a below-Guidelines prison term of 66 months on the bank
    fraud charge and a concurrent term of 36 months on the false
    tax return charge, along with concurrent three-year terms of
    supervised release on each of those charges. The court ordered
    Khan to serve a 36-month term in prison, followed by a three-
    year term of supervised release. After finding that AEB had
    suffered a loss, for restitution purposes, of $14.3 million,2 the
    court also ordered Ghuman to pay $11.8 million and Khan to
    pay $10.8 million in restitution, $9.8 million of which was a
    joint and several obligation.
    2
    In a separate calculation to determine the defendants’ offense level
    pursuant to U.S.S.G. § 2B1.1, the court put the net loss to AEB at $8.4
    million. That calculation gave the defendants the full benefit of the market
    value of the collateral that had been returned to the bank at the time of
    sentencing, regardless of whether the collateral had been sold.
    Nos. 19-1734 & 19-1745                                         7
    II.
    A. Ghuman – acceptance of responsibility.
    Application note 3 to section 3E1.1 provides that “[e]ntry of
    a plea of guilty prior to the commencement of trial combined
    with truthfully admitting the conduct comprising the offense
    of conviction, and truthfully admitting or not falsely denying
    any additional relevant conduct for which he is accountable
    under section 1B1.3 (Relevant Conduct) (see Application Note
    1(A)) will constitute significant evidence of acceptance of
    responsibility.” Ghuman argues, in essence, that because he
    truthfully admitted the acts underlying the bank fraud charge
    to which he pleaded guilty and acknowledged his participation
    in the overall scheme to defraud the bank, his lawyer admitted
    that he played a central and essential role in that scheme, and
    he did not falsely deny any aspect of that offense or any
    relevant conduct, he was entitled to a two-level credit for
    acceptance of responsibility. But given the extent to which
    Ghuman affirmatively downplayed his role in the bank fraud
    scheme and denied culpability for certain aspects of the fraud,
    the district court committed no clear error in finding that
    Ghuman had not genuinely accepted responsibility.
    Judge Tharp gave a lengthy and detailed account,
    occupying 18 pages of the sentencing transcript, explaining
    why he was denying the section 3E1.1 reduction. Judge Tharp
    stressed that although Ghuman, in pleading guilty, had
    admitted that he was part of the scheme to defraud the bank,
    the only specific conduct he took responsibility for was
    supplying false information regarding the source of the equity
    payments in the loan underlying the count to which he pleaded
    8                                        Nos. 19-1734 & 19-1745
    guilty. That was enough to establish his guilt on that charge,
    but not his full role in the scheme.
    [I]t is absolutely clear to the Court that Mr. Ghuman
    was at the center of this scheme. He was, if you will,
    driving the car. Mr. Ghuman, along with Mr. Khan,
    were the principal beneficiaries of this scheme … .
    It’s very doubtful that this crime would have
    occurred, at least not on this scale, but for the actions
    of Mr. Ghuman.
    R. 423 at 26–27. Ghuman was not required to affirmatively
    admit relevant conduct, Judge Tharp agreed, but the scope of
    the fraudulent scheme and Ghuman’s role in it were matters
    encompassed by the offense to the crime of conviction.
    Ghuman’s attorney represented to the court that Ghuman did
    acknowledge being an integral and major player in the broader
    scheme, and if that were true, the judge agreed, Ghuman
    would be entitled to credit for acceptance of responsibility. But
    it was not true: Ghuman had made no real acknowledgment of
    the conduct that made him a central figure in the scheme, and
    had, in fact, falsely denied much of that conduct.
    Judge Tharp cited a range of actions that Ghuman had
    taken in furtherance of the scheme. These included:
    –    recruiting potential buyers, whom he
    “pushed and convinced and enticed and
    cajoled” to acquire multiple gas stations (R.
    423 at 33);
    –   recruiting straw buyers as needed for the
    loans;
    Nos. 19-1734 & 19-1745                                          9
    –   coaching buyers to take the steps necessary to
    obtain their loans;
    –   providing false bank statements on behalf of
    the buyers;
    –   creating the fraudulent equity checks to make
    it appear that buyers were complying with
    SBA requirements;
    –   recruiting Mehta to prepare fictitious income
    tax returns;
    –   with Khan, bribing Brahmbhatt with “boxes
    of cash” and automobiles (R. 423 at 36);
    –   providing buyers with the names of corporate
    entities that would take ownership of the gas
    stations, and assigning relatives as guarantors
    of the loans; and
    –   discussing the destruction of evidence.
    R. 423 at 30–38. These were the actions that exemplified
    Ghuman’s central role in the scheme.
    Yet, Ghuman’s statements to the Probation Officer and to
    the Court, while paying lip service to his guilt, “backpedal[ed]
    and backpedal[ed] and backpedal[ed]” in terms of his relative
    culpability and the specific actions he took in furtherance of the
    scheme. R. 423 at 29. His version of the offense was
    “emblematic of the problem.” R. 423 at 24. Not until 12 pages
    into that document was there a discussion of what Ghuman
    was responsible for. A substantial portion of the document was
    devoted to arguing that the bank bore substantial responsibility
    10                                     Nos. 19-1734 & 19-1745
    for the success of the scheme. Judge Tharp acknowledged that
    there was “plenty of blame to go around,” and that the bank
    indeed bore some responsibility. R. 423 at 26. Yet, the bank had
    not operated in bad faith, and it had in place controls and
    checks that the defendants had made efforts to work around.
    More to the point, Ghuman’s version of the offense attempted
    to minimize his own culpability by portraying himself as more
    of a diffident, go-along participant in the fraud who did not
    think it was his business to tell Brahmbhatt and his other co-
    schemers it was wrong to use fraudulent information in order
    to secure the SBA loan guarantees. But “[t]his was his business.
    He was the one bringing these folks to Mr. Brahmbhatt to get
    the loans.” R. 423 at 29 (emphasis ours). Similarly, Ghuman had
    told the Probation Officer that it “took [him] a while to
    understand that this was a huge criminal act” (R. 423 at 31)
    when Ghuman was a driving force behind the fraud. Apart
    from minimizing his role, Ghuman had also falsely denied a
    number of actions attributed to him by others: including
    recruiting buyers, altering documents, and suggesting the use
    of straw buyers. And, ultimately, he had fled to India for more
    than a year after the FBI began interviewing witnesses to the
    fraudulent scheme.
    Judge Tharp acknowledged that Ghuman had expressed
    remorse, and had made some preliminary payments toward his
    restitution obligation. On the other hand, his affidavit
    concerning his assets raised questions and was not, in the
    judge’s view, a full and truthful accounting of his holdings.
    Ultimately, the judge concluded, Ghuman had not fully
    acknowledged either his degree of culpability or the scope of
    harm that his actions had caused.
    Nos. 19-1734 & 19-1745                                                  11
    Given the record, Judge Tharp was more than justified in
    reaching this conclusion.3 A defendant merits a reduction
    pursuant to Guidelines section 3E1.1 when he “clearly
    demonstrates acceptance of responsibility for his offense.”
    U.S.S.G. § 3E1.1(a). Truthfully admitting the conduct
    underlying the offense of conviction will go some way toward
    establishing a defendant’s acceptance of responsibility; a
    defendant is not required to admit relevant conduct beyond the
    offense of conviction, so long as he does not “falsely den[y] or
    frivolously contest[ ]“ such conduct. Id. comment. (n.1(A)). But
    a timely admission of guilt does not alone entitle a defendant
    to credit for acceptance of responsibility; it may, in the end, be
    outweighed by other conduct that is inconsistent with a
    genuine acceptance of culpability for the crime one has
    committed. Id.
    Ghuman pleaded guilty to the commission of bank fraud in
    violation of § 1344, a key element of which is a scheme to
    defraud the bank. United States v. LeBeau, 
    949 F.3d 334
    , 341 (7th
    Cir. 2020), pet’n for cert. filed (U.S. June 26, 2020) (No. 19-1424);
    United States v. Ajayi, 
    808 F.3d 1113
    , 1119 (7th Cir. 2015). That
    same scheme underlay all 19 counts of bank fraud alleged in
    the indictment, and although Ghuman pleaded guilty to only
    one of those counts (the others would constitute relevant
    conduct, see U.S.S.G. § 1B1.3, comment. (nn. 3, 5(B)), the district
    court could reasonably expect Ghuman to acknowledge his role
    3
    Given the detail and care with which the judge articulated his findings
    on this point, Ghuman’s suggestion that the court did not adequately
    explain his decision to deny him credit for acceptance of responsibility is
    a non-starter.
    12                                        Nos. 19-1734 & 19-1745
    in that scheme. See United States v. Jones, 
    52 F.3d 697
    , 701 (7th
    Cir. 1995) (“the district court was on solid ground in denying
    that reduction once it found that Jones had not fully admitted
    the extent of her participation in the fraudulent scheme”)
    (collecting cases); United States v. Ali, 
    619 F.3d 713
    , 720 (7th Cir.
    2010) (“blaming someone else for one's own actions or
    minimizing one's involvement in the offense is not the sort of
    genuine contrition the acceptance of responsibility reduction
    seeks to reward”); United States v. Fiore, 
    178 F.3d 917
    , 925–26
    (7th Cir. 1999) (“Sentencing courts must look beyond
    formalistic expressions of culpability and determine whether
    the defendant has manifested an acceptance of responsibility
    for his offense in a moral sense.”); United States v. Zaragoza, 
    123 F.3d 472
    , 480–81 (7th Cir. 1997), retreated from on other grounds,
    United States v. Blaylock, 
    413 F.3d 616
    , 620–21 (7th Cir. 2005);
    United States v. Pitz, 
    2 F.3d 723
    , 732 (7th Cir. 1993). Put another
    way, the district court was not requiring Ghuman to admit
    conduct beyond the offense of conviction: The overall scheme
    to defraud the bank, and Ghuman’s role in that scheme, were
    part and parcel of the charge of bank fraud to which he
    pleaded guilty.
    Ghuman relies on his attorney’s statement that Ghuman
    “admits that he was an integral, a major player in this scheme,
    no question about that” (R. 453 at 173) as proof that he did
    acknowledge his role in the scheme; but we cannot fault the
    district court for finding the attorney’s statement insufficient to
    constitute a genuine acknowledgment of Ghuman’s culpability.
    Ghuman’s own statements, as we discuss below, were
    inconsistent with an admission that Ghuman was an instigator
    and central player in the scheme. Moreover, as Judge Tharp
    Nos. 19-1734 & 19-1745                                      13
    pointed out, Ghuman expressly (and falsely) denied a number
    of the actions that made him an integral part of the scheme.
    Judge Tharp aptly characterized Ghuman’s version of the
    offense as being “emblematic of the problem here.” R. 423 at
    24. The first 11 pages of that version are devoted to the bank,
    highlighting AEB’s “egregious” judgment (R. 423 at 87) in re-
    hiring Brahmbhatt (after he briefly worked in 2007 for another
    bank) and promoting him to the head of the SBA loans division
    and faulting the bank for not having the oversight and
    safeguards in place that might have defeated the scheme
    Brahmbhatt and the other defendants perpetrated. Only after
    that take-down of AEB does Ghuman turn to his own
    wrongdoing. Ghuman admits that he participated in a plan to
    use fraudulent information to secure SBA guarantees, “even
    though he knew it was illegal.” R. 347 at 99. He admits
    knowing that some gas station purchasers were submitting
    loan applications that included false information, that he
    signed statements indicating that the buyers were providing
    equity in the purchased stations when he knew they were not,
    and that in some instances, he provided the equity from his
    own funds to give the false appearance that the buyers were
    providing the required equity. R. 347 at 99–100. Ghuman then
    goes on to dispute certain aspects of the government’s version
    of the offense, asserting that it “vastly overstates Ghuman’s
    role in this scheme and minimizes the conduct of
    others—particularly Brahmbhatt.” R. 347 at 100. Ghuman
    specifically denies that he recruited two of the buyers, Ish
    Oberoi and Mohammad Ali, that he altered documents and
    falsified loan applications, or advised others to use straw
    buyers (including their family members). Finally, ending where
    14                                     Nos. 19-1734 & 19-1745
    he began, Ghuman goes so far as to assert it was “unlikely AEB
    relied on the information Brahmbhatt and others submitted
    when issuing the loans in question, “ and that although
    Ghuman and his co-defendants were guilty of a crime, the true
    victim of that crime was the SBA rather than AEB. R. 347 at
    101.
    We reject Ghuman’s assertion that the district court
    misunderstood and mischaracterized his version of the offense.
    Certainly it is true, as Ghuman has been at pains to point out,
    that AEB was culpable for the nearly blind faith it placed in
    Brahmbhatt and for its failure to more aggressively monitor the
    SBA loan approval process. But the fraud was one perpetrated
    by Ghuman and his cohorts, not the bank. At best, Ghuman’s
    account of the scheme represents an incomplete
    acknowledgment of Ghuman’s role in the offense. Beyond
    acknowledging Ghuman’s guilty knowledge that false
    information was being given to the bank, the only actions in
    furtherance of the scheme that he admits are signing statements
    indicating the buyers of the gas stations were contributing the
    requisite equity to the purchases and that in some instances
    Ghuman was funding those equity checks himself. Much more
    exposition in Ghuman’s version is devoted to blaming the bank
    for mismanaging its affairs in such a way that opened the door
    to the success of the scheme that Ghuman and his co-
    defendants perpetrated. Ghuman, of course, bore the burden of
    demonstrating to the district court that he accepted moral
    responsibility for his criminal activity. E.g., United States v.
    Smith, 
    860 F.3d 508
    , 516 (7th Cir 2017). “[Defendant]’s grudging
    and incomplete admission, accompanied by an excuse to
    minimize his own culpability, does not indicate an acceptance
    Nos. 19-1734 & 19-1745                                         15
    of responsibility.” United States v. Aquilla, 
    976 F.2d 1044
    ,
    1053–54 (7th Cir. 1992); see also Jones, 55 F.3d at 295; United
    States v. Rosalez-Cortez, 
    19 F.3d 1210
    , 1219–20 (7th Cir. 1994).
    Ghuman’s version of the offense can readily be characterized
    as a grudging and incomplete acceptance of responsibility for
    the actions he took in furtherance of the offense, accompanied
    by finger-pointing at the bank for not making it more difficult
    for Brahmbhatt, Ghuman, and the other defendants to
    perpetrate the multi-million dollar fraud on the bank.
    Ghuman admits that he knew that buyers were including
    false information in the loan applications they submitted to the
    bank. “Ghuman told himself that this was not his business, but
    he now understands that he should not have entered into the
    transaction in such cases.” R. 347 at 99. Likewise, Ghuman told
    the probation officer, “It took me a while to understand, but
    this was a huge criminal act.” R. 347 at 10. These sorts of state-
    ments read as though Ghuman simply went along with the
    wrongs perpetrated by Brahmbhatt, who shepherded the
    fraudulent loan applications through the bank’s approval
    process, and the buyers, who submitted loan applications laden
    with false information.
    But the record supports the district court’s findings that
    Ghuman did much more than accede to and join in with the
    wrongdoing perpetrated by co-defendants. He recruited buyers
    and cajoled them into buying multiple stations, which was
    obviously to the benefit of himself and Khan as the sellers of
    the stations. He embraced Brahmbhatt’s invitation to
    circumvent the lending criteria imposed by the bank and the
    SBA, and bribed him in order to do so. He coached buyers on
    what they needed to do. He not only supplied equity on behalf
    16                                      Nos. 19-1734 & 19-1745
    of buyers in some instances, as he admitted in his version of the
    offense, but, according to Khan, used computer software in
    other instances to alter checks from the buyers (or their co-
    signors) in order to give the same impression. He recruited
    (and encouraged the use of) straw buyers. He provided false
    bank statements to inflate buyers’ assets. And he recruited
    Mehta to draft false tax returns to again give a false picture of
    the buyers’ financial status.
    Ghuman has denied many of these actions, and given the
    evidence before the district court, Judge Tharp did not clearly
    err in treating these as false denials. Whether these actions are
    deemed relevant conduct or inherent in the scheme which
    underlay his plea of guilty, Ghuman’s false denials themselves
    support the district court’s decision to deny him credit for
    acceptance of responsibility.
    Ghuman also told the probation officer that one of the
    purposes of his 2009-11 stay in India was to seek medical
    treatment. R. 347 ¶ 86. The district court found that this was a
    lie, and that Ghuman had really fled this country for India in
    order to evade prosecution for the crimes which were then
    under investigation. R. 423 at 37. Again, the record supports
    this finding. Khan, for example, told the government that
    Ghuman had no medical condition which necessitated his
    departure for India. R. 297-2 at 14. Ghuman’s statements to the
    probation officer regarding his flight to India were yet another
    misrepresentation of what he had done and likewise support
    the district court’s finding as to acceptance.
    The district court’s findings as to what Ghuman did were
    based in part on the the grand jury testimony of Brahmbhatt
    Nos. 19-1734 & 19-1745                                                17
    and Mehta, the proffer of his co-defendant Khan, and the grand
    jury testimony of two young gas station purchasers, Ali and
    Oberoi. Noting his due process right to be sentenced on the
    basis of reliable information, e.g., United States v. Helding, 
    948 F.3d 864
    , 870 (7th Cir. 2020) (citing United States v. Tucker, 
    404 U.S. 443
    , 447, 
    92 S. Ct. 589
    , 592 (1972)), Ghuman argues that he
    was deprived of the opportunity to contest the credibility and
    reliability of these materials before the court based key findings
    upon them. We disagree.
    The record indicates that the government provided copies
    of the proffer and grand jury transcripts to defense counsel and
    later submitted them to the probation officer in conjunction
    with the government’s sentencing memorandum; the probation
    officer in turn attached them to a supplement to the pre-
    sentence report. R. 296. Consequently, Ghuman had the
    opportunity to address the credibility and reliability of these
    materials prior to sentencing but did not take advantage of that
    opportunity.4 On consideration of the grand jury transcripts
    and the proffer, the court found them to be credible. R. 423 at
    30, 35. Ghuman contends that not until the court relied on them
    did he have any reason to object, but this is plainly wrong.
    Ghuman had access to these materials, he knew what the
    4
    In his objections to the pre-sentence report, Ghuman represented that
    his counsel had not been placed on notice that the government had
    submitted these materials to the probation officer. R. 299 at 2. However,
    the government pointed out in response that it had previously produced
    the materials to defense counsel and had copied counsel on the
    transmittal of the materials to the probation officer. R. 322 at 2–3. The
    government’s sentencing memorandum also quoted from these materials
    at some length. R. 297.
    18                                        Nos. 19-1734 & 19-1745
    government was relying on them for, and he knew that the
    district court might choose to rely on them. He was bound to
    object in a timely manner if he believed the district court
    should not rely on them, and he was instead silent on this
    point. It is too late in the day to be saying that the court could
    not properly rely on these materials. Certainly there was no
    plain error in the court choosing to credit them and to factor
    these sources into its finding as to acceptance of responsibility.
    B. Ghuman—erroneous term of supervised release.
    The court imposed a term of three years of supervised
    release on the false tax return count (Count 23), to be served
    concurrently with the three-year term on the bank fraud count
    to which Ghuman had pleaded guilty (Count 1). A three-year
    term was permissible as to the bank fraud count, but one year
    is the statutory maximum on the tax fraud count. Section
    7206(1) is categorized as a Class E felony because the maximum
    prison term on that charge is three years, and the maximum
    term of supervised release for a Class E felony is one year. See
    
    18 U.S.C. §§ 3581
    (b)(5) (deeming Class E felony as one subject
    to maximum prison term of three years); 
    26 U.S.C. § 7206
    (setting three years as maximum term of imprisonment for
    false tax return); 
    18 U.S.C. § 3583
     (b)(3) (limiting term of
    supervised release on Class E felony to maximum of one year).
    Ghuman did not raise the issue below, so our review is for
    plain error only. See Rosales-Mireles v. United States, 
    138 S. Ct. 1897
    , 1904–05 (2018). To succeed on plain error review, a
    defendant must show not only that an obvious error occurred,
    but that the error affected his substantial rights. 
    Id.
     The district
    court erred, and plainly so, in imposing a term of supervised
    Nos. 19-1734 & 19-1745                                        19
    release on the tax fraud count that exceeded the statutory
    maximum. The government nonetheless argues that Ghuman
    was not prejudiced by the error, because the two terms of
    supervised release are to run concurrently and a three-year
    term is authorized as to the bank fraud count. See United States
    v. Gray, 
    332 F.3d 491
    , 493 (7th Cir. 2003). However, Ghuman
    has made a plausible case that there still could be material,
    adverse consequences to him in the future if the error is not
    corrected– for example, in a revocation proceeding prompted
    by a charge that he violated the terms of his supervised release,
    which might lead to the imposition of another prison term
    (including consecutive terms) imposed on both periods of
    supervised release.
    To foreclose that possibility, we may correct the judgment
    ourselves to modify the term of supervised release on the tax
    return count to a term of one year. See, e.g., United States v.
    Smith, 
    906 F.3d 645
    , 651 (7th Cir. 2018). Ghuman has suggested
    that we should instead remand for re-sentencing, but we are
    not convinced that a remand is necessary. The district court
    imposed the maximum possible term of supervised release
    (three years) on the bank fraud charge and the maximum
    possible prison term on the tax return charge (three years),
    along with what it believed (in error) to be the maximum
    probationary term of three years. We have no doubt that the
    court would have imposed the maximum possible term of
    supervised release (one year) on the latter charge.
    20                                      Nos. 19-1734 & 19-1745
    C. Khan restitution – refusal to offset restitution by value of
    collateral still held by bank.
    As the bank loans that are the subject of this case went into
    default and AEB foreclosed on those loans, it took possession
    of the gas stations that were the collateral on the loans; the
    bank was able to sell some of those properties, but it held onto
    a dozen of the stations that it was unable to sell for a
    reasonable price. In calculating Khan’s restitution obligation
    ($10.8 million), the court gave him credit only for the collateral
    that the bank had already sold. Khan argued that he should
    have additionally been given credit for the collateral that the
    bank had not yet sold. The district court rejected this argument,
    concluding it lacked the authority to credit Khan for the value
    of the unsold properties in view of the Supreme Court’s
    decision in Robers v. United States, 
    572 U.S. 639
    , 
    134 S. Ct. 1854
    (2014).
    The district court was correct. This case is governed by the
    Mandatory Victims Restitution Act of 1996 (“MVRA”), which
    in relevant part provides that a defendant should be credited
    for the return of stolen property in the restitution calculation.
    18 U.S.C. § 3663A(b)(1)(B). Robers holds more specifically that
    for purposes of determining a defendant’s restitution
    obligation in a bank fraud case like this one, the defendant is
    credited for the amount of money the bank (as victim) receives
    when it sells the collateral, because only then is the property
    previously taken from the bank—i.e. the money obtained by
    fraud— restored to the bank’s possession. Id. at 640–41, 
    134 S. Ct. at 1856
    . The defendant in Robers contended that he should
    instead be credited with the value of the collateral at the time
    Nos. 19-1734 & 19-1745                                            21
    the bank takes title to the collateral—an argument he made
    because property values were falling and by the time the bank
    sold the collateral, it was worth less than when the bank took
    possession of the properties. But the Court rejected that
    argument, concluding that the relevant value is the value at the
    time the collateral is sold by the bank. Ibid., see also id. at 644,
    
    134 S. Ct. at 1858
    .
    In the course of its analysis, the Court adverted to the
    scenario presented here, where a victim takes possession of the
    collateral but is not able to sell it by the time the defendant is
    sentenced, thus depriving the defendant of credit against his
    restitution obligation for the value of the collateral. Robers
    noted that the sentencing court was not without some tools to
    address the potential unfairness to the defendant in this
    scenario, including delaying the determination of the
    restitution amount for a short period of time following
    sentencing in order to give the victim additional time to
    liquidate the collateral or crediting the defendant for the value
    of the collateral if the victim has decided to keep it. Id. at 644,
    
    134 S. Ct. at
    1858 (citing 
    18 U.S.C. § 3664
    (d)(5), (f)(2), (f)(3)(A),
    and (f)(4). “And the Government has conceded that the statute
    (whether through these or other provisions) provides room for
    credits against an offender’s restitution obligation to prevent
    double recovery to the victim.” 
    Id. at 645
    , 
    134 S. Ct. at 1858
    (cleaned up) (citation omitted). A concurrence by Justice
    Sotomayor (joined by Justice Ginsburg) makes explicit that
    because real property is an illiquid investment, it may not be
    possible in every case for the bank to sell the collateral before
    sentencing and the imposition of restitution; and so long as the
    bank has not decided to hold onto the collateral indefinitely as
    22                                        Nos. 19-1734 & 19-1745
    an investment, a defendant is not entitled to credit at
    sentencing for the value of the collateral against his restitution
    obligation. 
    Id.
     at 647–49, 
    134 S. Ct. at
    1859–60 (Sotomayor, J.,
    concurring). “In such cases, I would place on the defendant the
    burden to show—with evidence specific to the market at
    issue–that a victim delayed unreasonably in selling collateral,
    manifesting a choice to hold the collateral.” Id. at 649, 
    134 S. Ct. at 1861
    .
    Here, Khan points to no evidence that the bank decided to
    hold the properties in question as an investment as opposed to
    being unable to sell the properties immediately at a reasonable
    price—and indeed, the district court rejected the notion that the
    bank had made an affirmative decision to hold onto these
    properties as an investment. R. 451 at 12–14. So the court was
    correct not to credit Khan for the value of the unsold properties
    in calculating his restitution obligation.
    Relatedly, Khan also faults the district court for failing to
    anticipate and provide for the future sales of the bank-held
    collateral and corresponding reductions in his restitution
    obligation. The government agrees that Khan’s restitution
    obligation is subject to modification in the future if and when
    the bank is able to sell the properties. Cf. United States v.
    Dawson, 
    250 F.3d 1048
    , 1051 (7th Cir. 2001) (“were Dawson's
    co-schemers to pay Rush Hospital any amounts in restitution,
    we expect that the government would notify Dawson of that
    occurrence so that she could properly file a request for
    modification of restitution”) (citing § 3364(j)(2) (defendant
    entitled to credit for “any amount later recovered as
    compensatory damages for the same loss by the victim” in any
    federal or state civil proceeding)). The district court itself
    Nos. 19-1734 & 19-1745                                         23
    acknowledged this possibility. R. 451 at 17. But the government
    argues that Judge Tharp was not required to provide for such
    modifications at the time of sentencing, not knowing if or when
    such sales will occur.
    The district court did not err in omitting from the judgment
    any provision addressing the parties’ obligations in the event
    the unsold collateral is finally liquidated by the bank at some
    date in the future. In the briefing and at argument, Khan’s able
    counsel suggested that, at a minimum, the bank should have
    been ordered to notify the parties of such sales so that the
    parties could take appropriate steps to modify Khan’s
    restitution obligation. That certainly is a reasonable suggestion,
    but given the extent to which real property sales can be
    discovered through publicly-available sources, we do not think
    the court was obligated to incorporate such a provision in the
    judgment.
    D. Khan—refusal to consider his financial circumstances in
    determining his restitution obligation.
    No one disputes that Khan does not, at present, have the
    financial wherewithal to make good on the restitution
    obligation—$10.8 million—that the district court imposed.
    Khan asked the district court to consider his financial
    circumstances when it determined the amount of restitution he
    owed to the bank. But the court held that full restitution was
    required and that it was without the authority to consider a
    lesser amount based on Khan’s individual circumstances.
    The district court again was correct. Given the terms of the
    statute, “[t]he economic circumstances of a defendant cannot be
    considered by the court when fixing the amount of the
    24                                        Nos. 19-1734 & 19-1745
    restitution.” United States v. Sensmeier, 
    361 F.3d 982
    , 988 (7th
    Cir. 2004) (footnote omitted) (emphasis in original); see §
    3664(f)(1)(A). As this court recognized in United States v. Day,
    
    418 F.3d 746
     (7th Cir. 2005), the MVRA elevates the victim’s
    right to full restitution over the defendant’s ability to pay:
    Congress, in adopting the MVRA, believed that
    the law should be concerned first with the
    victim's right to full restitution and the
    defendant's concomitant recognition of the duty
    to pay full restitution, albeit a largely symbolic
    one. This belief is given effect through § 3664(f),
    which first requires the court to order “restitution
    to each victim in the full amount of each victim's
    losses as determined by the court and without
    consideration of the economic circumstances of
    the defendant.” 
    18 U.S.C. § 3664
    (f)(1)(A).
    Therefore, the fact that a defendant may never be
    able to satisfy a restitution award is no longer
    grounds for reversing that award.
    
    Id. at 758
     (footnote omitted). See also Dolan v. United States, 
    560 U.S. 605
    , 612, 
    130 S. Ct. 2533
    , 2539 (2010); United States v.
    Malone, 
    747 F.3d 481
    , 485 (7th Cir. 2014); United States v.
    Hosking, 
    567 F.3d 329
    , 333 (7th Cir. 2009), abrogated on other
    grounds, Lagos v. United States, 
    138 S. Ct. 1684
     (2018).
    The district court does have the obligation to consider a
    defendant’s financial obligations in determining how the
    defendant will pay his restitution obligation—in a lump sum or
    installments, for example—and on what schedule. § 3664(f)(2),
    (f)(3); see Paroline v. United States, 
    572 U.S. 434
    , 485, 134 S. Ct.
    Nos. 19-1734 & 19-1745                                           25
    1710, 1742 (2014) (Sotomayor, J., dissenting); Hosking, 
    567 F.3d at
    335–36.
    But we see no support in the record for Khan’s contention
    that the court did not appropriately consider his financial
    circumstances in setting a reasonable schedule for restitution
    payments. The court, in fact, concluded that in view of Khan’s
    circumstances, he should not be required to pay interest on his
    restitution obligation. R. 395 at 2. In addition, the court, in lieu
    of a lump-sum payment, ordered Khan, upon release from
    prison, to commence making periodic partial payments equal
    to 10 percent of his net income. R. 343 at 5. These provisions
    indicate that the court was considering his economic
    circumstances in laying out the manner and schedule of
    restitution payments and establishing a realistic payment plan.
    See Paroline, 572 U.S. at 485–87, 
    134 S. Ct. at
    1742–43
    (Sotomayor, J., dissenting) (acknowledging importance of
    partial periodic payment schedules for defendants with limited
    financial resources).
    III.
    The term of supervised release on Ghuman’s conviction for
    filing a false tax return is reduced to one year. His sentence is
    otherwise affirmed. We likewise affirm Khan’s sentence,
    including the amount and terms of his restitution obligation.
    We commend Judge Tharp for the extraordinary time,
    consideration, and care he devoted to resolving the sentencing
    issues presented in this case.